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| Dick Gregory at a Voting Rights Act rally on February 27 Photo by SEIU International |
The challenge, Shelby County v.
Holder, is to Section 5 of the
VRA, which requires all or part of 16 states with a history of racial
discrimination to clear in advance with the Justice Department any
changes in their election laws that might affect the right of racial
minorities to vote. Localities that have not had a VRA challenge to
their laws for ten years can “bail out” from Section 5—that is,
they are no longer required to obtain preclearance. Like the rest of
the country, they come under the default option, Section 2.
The good news about Section 2 is that
it only requires the plaintiff to prove a discriminatory effect,
rather than discriminatory intent. Discriminatory intent is almost
impossible to prove, since elected officials seldom publicly admit an
intention to violate the law. But the bad news about Section 2 is
that you can only challenge voting discrimination after the fact,
when the damage has already been done. It
is the preclearance provision in Section 5 which gives the VRA its
real power by shifting the burden of proof onto those who would
change the law to demonstrate that the change does not have
discriminatory impact.
Shelby County v. Holder was brought forward by the Project on Fair Representation, a conservative
legal organization that is funded exclusively by Donors Trust, which
also contributes to the American Legislative Exchange Council (ALEC),
Americans for Prosperity, and Americans for Tax Reform. While
contributions to Donors Trust are anonymous, its supporters are
suspected to be a who's who of wealthy conservatives, including the
Koch brothers. Project on Fair Representation received $1.2 million
from the Donors Trust between 2006 and 2011.
Shelby County, Alabama, is challenging
Section 5 on two somewhat inconsistent grounds. First, they are
saying that voting discrimination against African-Americans is no
longer a problem in the South. It seldom happens. Secondly, they
are saying that this thing that seldom happens also happens in the
rest of the country as well, and therefore, Section 5 discriminates
against the states that are subject to its provisions.
Both of these claims are empirical
questions. How many cases have been brought against states and
communities under the VRA from 1965 to the present? Has this number
changed over time? How does the number of cases among the regions
subject to Section 5 compare to the number of cases in the rest of
the country? The only non-empirical question raised by the case is
how many cases of racial discrimination would be few enough to
justify abandoning Section 5.
The VRA has been reauthorized by
Congress four times, most recently in 2006, when it was renewed for
25 years. At that time, Congress held 21 hearing over 10 months,
compiling 21,000 pages of testimony on voting discrimination. The
VRA renewal passed by a vote of 98-0 in the Senate and 390-33 in the
House, suggesting that Congress at least was persuaded that will
still need the VRA.
The best source of data on violations
of the VRA is the research of Morgan Kousser, who has compiled an exhaustive list
of 4,141 voting rights cases. Of these, 90%, and 93.4% of
successful challenges (those which resulted in a judgment of
discrimination), occurred in jurisdictions covered by Section 5. This
is not surprising, since you can only bring a Section 5 challenge in
those localities. More persuasive, however, is the fact that 83.3%
of the successful Section 2 cases, which can be filed anywhere in the
country, came from jurisdictions subject to Section 5 oversight. (By
the way, there have been 20 violations of the VRA in Shelby County
since 1975, the most recent having occurred in 2008.)
Chief Justice Roberts turned the
relatively clear question before the Court into a confusing
abstraction by asking the Justice Department lawyer whether he
thought “the citizens in the South are more racist than citizens in
the North.” (Roberts was referring to individual racism, or racial
prejudice, rather than institutional racism.) There are a number of
reasons why this is the wrong question.
- Individual racism is difficult to measure. It can be measured in several different ways which vary in their subtlety. In general, the more transparent the question and the more consciously controllable the answer, the less prejudice there will appear to be.
- Prejudice is an attitude while discrimination is a behavior. For a variety of reasons, social psychologists have found the correlation between attitudes and behavior to be fairly weak. In other words, people say one thing and do another.
- It is not the behavior of all citizens of the South or North that is at issue. It is the behavior of their elected representatives. Citizens influence their representatives indirectly, and often only after the fact.
- Voting discrimination can be motivated by many other goals in addition to personal prejudice, i.e., a desire to obtain a partisan advantage for one's political party.
Now would seem to be a particularly bad
time to overturn Section 5. The increasing racialization of politics
since the 2008 election has resulted in a greater concentration of
the most prejudiced Americans in the Republican party, the majority
party in most of the Section 5 jurisdictions. The ability of
Republicans to win national elections is threatened by demography—by
the greater number of young people and minorities in the voting pool.
As a result, they have been attempting more sophisticated voter
suppression methods. As Ari Berman reports, six of the nine states
fully covered under Section 5 passed new statewide voting restrictions
affecting minorities after 2010: voter ID laws (Alabama,
Mississippi, South Carolina, Texas and Virginia), restrictions on
voter registration (Alabama and Texas), and limits on early voting
(Georgia).
Only one third of the noncovered
jurisdictions have passed voter suppression laws since 2010. Of
course, that's still too many, as Pennsylvania residents know all too
well. One of the more reliable ways of discouraging voting, creating
long waiting lines at the polls, disproportionately affects Black and
Latino voters, and to my knowledge has never been challenged by the
VRA. If anything, we need to expand the scope of Section 5 of the
VRA to include all the states and to include all strategies that have
a discriminatory effect on voting.
Post Script
By now, you have probably heard about
Justice Scalia's reference to the VRA as “the perpetuation of
racial entitlement.” This was initially interpreted to mean that voting is, for Blacks at least, a privilege rather than a right.
However, if we look at his remarks in context, a different agenda
emerges.
Whenever a
society adopts racial entitlements, it is very difficult to get out
of them through the normal political process. I don't think there is
anything to be gained by any Senator to vote against continuation of
this act. And I am fairly confident it will be reenacted in
perpetuity unless—unless a court can say it does not comport with
the Constitution. . . .It's—it's a concern that this is not the
kind of a question you can leave to Congress.
Scalia seems to be saying that Congress
cannot be trusted not to pander to political
correctness. Therefore, it is up to wiser men like himself to
overrule their judgment. This is a strange argument coming
from someone who has previously argued against judicial activism, or
legislating from the bench. But Scalia has never let the
Constitution get in the way of his political ideology. In this
respect, he has become an even greater embarrassment to the country
than Justice Thomas, who at least has the good sense to keep his
mouth shut.
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